Can Wisconsin’s new law limiting collective bargaining in the public sector be challenged in court?

Recently, the state of Wisconsin passed a bill by special assembly that critically limits collective bargaining rights for most workers in the public sector. It appears that the dispute between proponents and opponents of the bill may find its way into the courtroom. Legal precedent disfavors those challenging the bill, but there are both procedural and constitutional arguments available to the opponents which may prove to be useful avenues for launching creative challenges to the bill.

What Does the Historical Treatment of Public Sector Bargaining Rights Reveal About Possible Challenges to the Wisconsin Bill?

Ultimately, the historical record of public sector collective bargaining indicates that a straightforward challenge to the Wisconsin bill will be ineffectual. Congress explicitly excluded public bargaining from the NLRA, thus allowing state and local governments to treat the issue as each sees fit. Many states have withheld public sector collective bargaining without issue, and “experimentation” with different collective bargaining schemes like Wisconsin is doing now has been historically encouraged. Courts have taken great care to maintain that public employees are not entitled to collective bargaining rights in the same way as private employees. Moreover, because courts have not recognized that the federal Constitution provides any guarantees to public bargaining, invoking the federal Constitution to override Wisconsin’s law is not a viable option. In general, the theme among lawmakers and courts is that collective bargaining is not actually a “right” when it comes to public employees unless it is guaranteed by a constitution – constitution – Wisconsin’s constitution does not guarantee this right. Instead, public bargaining in Wisconsin is treated as a privilege which may be granted or removed by legislative statute, which is the general approach the country at large.

How Might Opponents of the Wisconsin Bill Approach a Court Challenge it in Light of These Restraints?

While the procedural challenge may delay bill, it will likely not serve as a permanent stop to the bill’s enforcement as proponents can simply call for another vote on the bill while complying with all procedural requirements. Challengers are likely to additionally allege that the bill violates the Wisconsin state constitution. The equal protection clause of the Wisconsin state constitution requires that the state treat all people who are similarly situated similarly. Because Governor Walker arguably sifted through and chosen certain public sector unions to be exempt from having collective bargaining rights stripped (such as law enforcement and firefighters), equal protection challenges are likely to arise.